In Australia, there has been sporadic debate on a Bill of Rights since the 1890s. The debate has waxed and waned in recent decades, yet continues to date. In a 1988 referendum, a proposal for the constitutional adoption of a Bill of Rights was defeated in every state. In fact, it suffered the worst defeat of any referendum in Australian history.
The same debate raged in Canada, but conversely resulted in the adoption of the Charter of Rights and Freedoms in 1982. The Charter represented the constitutional entrenchment of ideals expressed in Canada's 1960 Bill of Rights. Canadians, through their parliament, have demonstrated a predilection towards protecting human rights in a judicially enforceable format.
The purpose of this paper is to examine the way in which the Charter of Rights and Freedoms has impacted on the legislative infringement of rights in Canada. It also examines the Australian method for protecting rights from similar infringement. Furthermore, it examines the performance of the judiciary insofar as it rules upon cases involving legislative infringements.
Fundamentally, a Bill of Rights affects the contents of legislation. It focuses on reducing the ability of the legislature to pass legislation limiting or affecting certain enumerated rights.
For Australians, there is a question of how one might assess the pros and cons of adopting a Bill of Rights. One method is to assess whether rights are any better protected in a society with a bill of rights. Rights are generally considered to be universal. However, as legal procedures and practices vary according to cultural norms, the best way to assess what impact a Bill of Rights would have on Australia is to examine the impact of such a Bill on a similar society.
Thus, Canada has been selected as a "test" of the affects a constitutionally entrenched Bill of Rights might have in Australia. A synopsis of the history of Canadian rights protection followed by a summary of the Charter's impact demonstrates those affects. As to the Australian practice, this paper focuses on the state of Victoria which now has the most advanced system for pre-legislative scrutiny of legislation in Australia. In addition to looking at Victoria's historical record on the protection of rights, this paper also analyzes the role the Scrutiny of Acts and Regulations Committee (SARC) has played in altering Bills which would potentially infringe upon rights.
The Canadian Historical Perspective
Any historical perspective of Canadian politics will need to begin with its founding ties to the United Kingdom. And in particular, Canada's inheritance of the doctrine of parliamentary supremacy from the United Kingdom. Canada's conventional observance of parliamentary supremacy manifests several implications germane to a discussion of its legislature's protection of human rights.
Beginning with the Constitutional Act of 1791 which granted elective legislative assemblies to the Canadian Colonies and culminating in 1867 with the creation of a federal system, Canada has held steadfast to the doctrine of parliamentary supremacy as a tenet of the Canadian Constitution. A.V. Dicey has elucidated the doctrine as stating, "...that Parliament...has, under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament". Under this doctrine judicial protection of human rights is confined to the striking down of unconstitutional legislation and the correction of unlawful administrative or police action. Two implications regarding human rights may be drawn from the pure application of this doctrine. First, parliament is not required to consider human rights provisions within its law-making capacity; therefore, the courts may not review those laws on the basis of any human rights considerations. And second, courts have no legitimate authority to disregard any law on the basis of human rights violations.
Parliamentary supremacy, therefore, necessarily implies that human rights protection remains exclusively within the domain of Parliament. Proponents of this doctrine may assert its superiority over judicial protection on several grounds. First, an elected legislature is more conducive to the changing nature of society and the human rights protections the society will view as valuable. Second, they argue the legislative branch is better equipped and qualified for the task of protecting human rights. They receive direct feedback from constituents and more importantly they are directly responsible to those constituents. The third, and perhaps most compelling argument against judicial scrutiny of human rights, invokes the potential limitless powers the judiciary could assume were it permitted to vet legislation for human rights violations. The citizens of a common-law nation, it is argued, prefer to keep power within legislatures rather than with courts.
The antithesis of the doctrine of parliamentary supremacy may well emulate the notion of a separation of powers more commonly thought of as existing in the US. This doctrine recognizes the disinterested nature of the judiciary in that it is does not depend upon popular support for protection of minority rights. It does not, as Bayefsky states, "[place] reliance for the security of human rights...on the possibility of civil disobedience." Furthermore, the judiciary is limited in its powers in the sense that it has no power of initiation. The power to make laws remains unquestionably the exclusive domain of parliament.
An historical application of these two contrary theses to Canada would appear to reveal an evolutionary nature within Canadian government. Bayefsky divides Canadian government into three periods and analyzes the degree of judicial protection of human rights within each period.
The first period she covers is pre-1960. This period witnessed half-hearted attempts by the judiciary to utilize the meager means available it to protect human rights. One of these means involved the court's power to determine legislative jurisdiction. A judge had some scope to declare ultra vires a legislation attempting to curtail human rights. A second tool utilized by courts in the pre-1960 period was to resolve vague or ambiguous language in favor of human rights. However, these tools were largely ineffective as they could not strike down intentional and directly worded infringements. And because liberties, when compromised, were done so by both levels of legislature, the jurisdiction tool was rarely invoked. A third, and largely experimental tool involved the court's quasi use of implied rights. Although the actual term "implied right" was used only once in this period, judges often referred to "...fundamental freedoms of speech, of assembly and association; of the press and of religion." The court, however, remained less than aggressive in its use of implied rights and maintained the doctrine of parliamentary sovereignty.
Bayefsky views the 1960Canadian Bill of Rights, the second period she analyzes, as an opportunity for judicial advancement in human rights protection. The court did take on a more activist nature following the introduction of the Bill of Rights; although, arguably, not to the fullest extent possible. The Supreme Court utilized the 1960 Bill of Rights to invalidate a pre-existing federal legislation in the matter of R v Drybones. The case entailed legislation which made it illegal for an Indian [sic] to be intoxicated off a reservation. Since similar law did not exist for whites, the Court struck down the federal legislation.
Although R. v. Drybones represented a significant increase in judicial activism, that increase would prove to be neither permanent nor all-encompassing. A second case, A.G. Can. v. Lavell, proved disappointing to those who had looked to the Court and Charter for rights protection. Lavell was an indigenous woman who claimed discrimination in a law which allowed indigenous men married to non-indigenous women to maintain their Indian [sic] status, but not vice versa. The Court did not find the situation to be inconsistent with the 1960 Bill of Rights provision of equality before the law.Lavell demonstrated that the Court would not become a leader of rights protection under the Bill of Rights. Of further significance is the fact that the Court did not recognize the 1960 Bill of Rights as a break from parliamentary sovereignty.
The third period analyzed by Bayefsky is that of post-Charter of Rights and Freedoms in 1982. The Charter represented the constitutional entrenchment of a Canadian Bill of Rights; seemingly the culmination of an attempt to place at least some burden of human rights enforcement upon the Court. In essence, it was a change from reliance on the threat of civil disobedience toward judicial scrutiny of legislation in protecting human rights. Although Bayefsky believes the Charter represents a significant and symbolic break from the tradition of parliamentary sovereignty, she also notes that the section 33 provision (permitting the legislature to announce certain legislation's "notwithstanding" of the Charter) permits a residual holding to parliamentary sovereignty. Writing in 1983, just one year after the Charter was enacted, Bayefsky predicted that the judiciary would maintain its lethargic approach to human rights protection and defer to parliamentary sovereignty. The next section, with the hindsight of thirteen years of Charter litigation, will test her prediction.
Canada under the Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is comprised of six groups. Fundamental Freedoms (s2) include freedom of: religion, press, peaceful assembly, and association. Democratic Rights (s3-5) contain provisions guaranteeing the right to vote, term limits between elections, and citing requirements for parliament. Mobility Rights (s6) simply involves freedom of entry and exit as well as residence. The Legal Rights (s7-14) are the heart of the Charter. These rights include the right to life and liberty, security from search and seizure, the rights of the accused, freedom from cruel and unusual punishment, freedom from self-incrimination, and the right to an interpreter in court. The fifth group of Charter rights are Equality Rights (s15) and the final group, Language Rights (s16-23), are uniquely Canadian and pertain to its two official languages: English and French.
Wilcox has emphasized three issues concerning the Canadian Charter. The first is the role section 1 plays in jurisprudence. Section 1 states that the Charter guarantees are subject to "reasonable limits...as can be demonstrably justified in a free and democratic society." The words "reasonable limits" permit considerable discretion by the courts and have been the source of much debate over the amount of power afforded the courts vis-a-vis the Charter. Wilcox's second issue is with s24(1) which provides for a citizen whose rights have been infringed or denied to go directly to a court for remedy. Furthermore, s24(2) disallows the use of evidence obtained in violation of the Charter. Despite s24(2), the key issue here is that the courts, on occasion, may allow evidence as admissible if it has reason to believe the evidence would have been obtained regardless of the Charter violation. And third, Wilcox notes that the Charter applies only to federal and provincial government; the courts and private persons or corporations including universities and hospitals are excluded. One other clarification, that of section 33 should also be made. The s33 provision permits Parliament to enact legislation "notwithstanding" the Charter of Rights and Freedoms simply by explicitly stating so. This is thought to ultimately protect and maintain Parliamentary supremacy in Canada.
However, the s33 provision is not without restrictions. Ferguson details three restrictions of the provision. First, it cannot be used to override democratic or mobility rights (ss3-6), the language rights (ss16-23), the aboriginal rights (s25), the multicultural rights (s27), or the gender equality rights (s28) found in the Charter. A second limitation is found in a sunset clause which ceases s33 provision on statutes five years after enactment unless the s33 is re-enacted. And third, is the practical political cost of utilizing a s33 provision. Explicitly denoting legislation "notwithstanding the Charter" is seen as something less than a politically astute maneuver.
Although there are a myriad of theories as to the affect the Charter of Rights and Freedoms has had on Canada since 1982, they all coalesce at one central thesis: that the Charter has had a profound affect on at least the political and legal scene. In the previous section of this paper, a question was raised pertaining to the role the judiciary would play under the Charter. This section will address that question. Additionally the question of whether the Charter has resulted in changes to only the political and legal system, or whether Canadian society has changed in some way will also be considered. I have borrowed Justice McLachlin's division of the Charter's impact into the political and the legal scene and then added a third division: the Charter's impact on Canadian society.
The political impacts of the Canadian Charter have been immense. Entrenching a Bill of Rights has at once altered legislative primacy, increased legislative acuteness, and arguably, it has strengthened democracy, . Reports alluding to a "massive shift" in constitutional power from the legislative to the judiciary support the notion of the Charter's high impact. This power shift has been described as manifesting itself in scenarios where politicians now feel an increased responsibility to tow the judicial line. Politicians are increasingly aware of the role played by the judiciary and are contemplating judicial reaction to new legislation before it is enacted. Indeed, Canadian Supreme Court Justice Lamer has observed cases in which legislative and public authorities have taken action to correct legislation before the court has acted.
Many view this power alteration as a move which properly balances the legislature's will of the majority and the judiciary's protection of minority rights. In this sense, the protection of minority rights has risen significantly without unduly reducing the concept of parliamentary supremacy. The section 33>notwithstanding= provision effectively preserves the legislature's final decision. However, the political fallout associated with invoking the section 33 has been effective in encouraging legislators to correct poorly written legislation rather than simply overriding the Charter.
Others have noticed a strengthening of Canadian democracy vis-a-vis the Charter. This democratization has mainly occurred in the form of increased participation, particularly by women and aboriginals. The Charter has enabled these traditionally fringe participators to become insiders, 'by giving rights to citizens and by handing out particular constitutional niches to particular categories of Canadians, such as women, aboriginals, etc., implicitly suggest some citizen role in constitutional change.'
On the legal side, it is clear judges have taken an increasingly visible role. Although initially reluctant, or at least hesitant, the judiciary is slowly warming to the idea that the Charter affords them the means to play a decisive role in human rights protection in Canada. Historically steeped in the black-letter law utilized in determining federal or provincial jurisdiction, some justices found Charter law intimidating. Justice Lamer, Canadian Supreme Court Justice reports:
We are not used to Charters, we are common law judges and common law is very different from charter law...and we are uneasy....
Despite their initial concern, Canadian justices have not shied away from Charter cases. Since 1982, ( in eight years) there have been over 4000 Charter cases. More than 100 of these have been decided by the High Court. As a point of reference, the European Court of Human Rights issued 100 judgments in 20 years under the European Convention for the Protection of Human Rights and Fundamental Freedoms. The extraordinary number of cases has had further ramifications as well.
First and foremost of these ramifications has been the increased amount of time required to issue judgments. One report shows that before the Charter, it took an average of four months following completion of oral arguments to issue a judgment. By 1985, the figure was twelve months. This inundation of the High Court has also had potentially dangerous effects. A conflict between the increased backlog of cases and the Charter's "speedy trial" (s 11b) requirement has resulted in a significant increase in the number of stays issued by the Court. Ontario exemplifies this problem, staying 282 prosecutions in 1988 alone.
Yet another legal impact has been the proliferation both in numbers of lawyers involved and the fees they charge. The wide breadth of the Charter has resulted in lawyers and judges alike drawing upon international cases for reference to the new Canadian cases. This not only requires an immense amount of legal research time, but those lawyers with experience in international cases are in increased demand.
Turning to specific effects on legislation, it would appear as though the Charter has had its greatest impact upon criminal law. Indeed, more than 3000 out of a total of 4000 Charter cases deal with criminal law. Issues such as presumption of innocence (s 11d), protection from unreasonable search and seizure (s 8), informing accused of their rights (s 10b), and the right to a speed trial (s 11b) have all been laid out explicitly in the Charter. Thus, the Courts in utilizing the Charter have taken important steps in codifying police powers and due process procedures as established by the Charter of Rights and Freedoms.
The public have taken an increasingly positive view of the Charter. Canadian Supreme Court Justice McLachlin notes the Charter is 'frequently lauded and virtually never criticized by a wide variety of constituencies....' Criticism, when it occurs, is overwhelmingly for the expansion of Charter rights. A case in point is former Prime Minister Mulroney's call in 1991 for the deletion of the section 33 (notwithstanding) clause. But perhaps a more compelling argument is the increased attention the pubic is taking in Supreme Court decisions and actions. Justice McLachlin bases his perception of the public popularity of the Charter on the enthusiasm with which it is utilized by individuals to appear in court and forward their views of the Charter's interpretation. He concludes that they debate it vigorously, but not its existence.
From the aforementioned scenarios, it appears certain that the Charter has had a profound affect on Canadian political, legal, and public institutions. In summary, demand on the courts and legal profession has risen dramatically, the definition of police powers and procedures have been elucidated, and the public has come to view the Charter as an important tool in securing their rights from the government. With the Canadian example in mind then, we look at where Victoria has come today.
The Victorian Scenario
The history of human rights protection in Victoria closely resembles that of the Canadian Federal government for obvious reasons. Once again, the basic premises of human rights legislation are found in the British tradition of Parliamentary Sovereignty and its precursors such as the Magna Carta and the Bill of Rights 1688. Victoria has supplemented these basic traditions with legislation such as the Ombudsman Act 1973, Administrative Appeals Tribunal Act 1984, and Equal Opportunity Act 1984.
Aside from these arguably scattered guarantees and prohibitions, Victoria is bound through the federal external affairs law to international treaties and conventions signed by Canberra. In this manner, Victoria has come under the auspices of the International Covenant on Civil and Political Rights. Gray notes that the covenant contains 22 articles guaranteeing various human rights and has been utilized by some Australian judges, although "there is no well-established tradition of so doing...." Thus, one might conclude that civil and political rights in Victoria are protected in a rather ad hoc manner.
Scrutiny of Acts and Regulations Committee
Victoria has shared in Canada's early distrust of judicial protection of human rights, preferring to retain parliamentary supremacy via legislative protection of those rights. Indeed, this preference was manifested in the Kenett Liberal government's establishment of the Scrutiny of Acts and Regulations Committee (SARC) in November of 1992. Charged with scrutinizing any Bill introduced into either House of Parliament for breaches to human rights, the committee has attempted to achieve via the legislature that which Canada attempted via the judiciary with its Charter of Rights and Freedoms.
Section 4D of the Parliamentary Committees Act 1968 details the SARC's terms of reference. Section 4D(a) details the terms relevant to this paper:
(a) to consider any Bill introduced into a House of Parliament and to report to the Parliament as to whether the Bill, by express words or otherwise-
(i) trespasses unduly upon rights or freedoms; or
(ii) makes rights, freedoms or obligations dependent upon insufficiently defined
administrative powers; or
(iii) makes rights, freedoms or obligations dependent upon non-reviewable
administrative decisions; or
(iv) inappropriately delegates legislative power; or
(v) insufficiently subjects the exercise of legislative power to parliamentary scrutiny....
It is with this legislation that Victoria has chosen to retain human rights protection within the realm of the legislative branch. The SARC chairman, Victor Perton, summarizes the Committee's modus operendi as follows:
As Bills are introduced, the Senior Legal Adviser prepares a summary of issues and analysis for consideration by the Committee. During Parliamentary Sessions, the Committee meets at least once a week. In normal circumstances, the draft report of the Committee is referred to the Minister for a response before the next meeting of the Committee. The committee then considers the reply and additional material solicited from professional groups or submitted by interest group and individuals. The views of the Committee are published in a weekly Alert Digest.
In order to cover all political opinion and in an effort to achieve consensus, the committee's judgments take three approaches. The first is a conclusion that a provision does infringe the terms of reference. The second approach is in respect to a provision which is arguable or may be the subject of countervailing public policy question is a 'may infringe' conclusion. The third approach where political opinion is divided on the committee is a summary of the issues which draws Parliament's attention to the provisions but forms no view.
In analyzing the affects the committee has had in protecting human rights, one might look at the success the committee has had in affecting legislation which potentially or actually infringed upon human rights. Success is difficult to define for a committee which gives recommendations. One measure of success may be the response to those recommendations. A synopsis of the Australian Grand Prix Bill, the Sentencing (Amendment) Bill, and the Crimes (amendment) Bill (no.2) illustrates the effect the SARC can have on a bill.
The Committee's affect on the Australian Grand Prix may be evidenced by ministerial response to the Committee's statements. Regarding clause 29, the Committee noted the provision may contravene its terms of reference in that the "clause...may make rights, freedoms or obligations dependent upon insufficiently defined powers." In this case, the minister replied "(t)he limitation on rights provided for in this clause mirrors that in the South Australian Act." Thus the minister's response was neutral.
In regards to clause 38(b), the Committee noted the provision "may contravene sections 4D (a)(iv) or (v) [and] suggested to the Minister that the provision be amended to provide for Ministerial approval." Here the Minister's response was to accept the Committee's suggestion "that the exemption be granted with the approval of the Minister rather than the Corporation."
On other occasions, the Committee may seek clarification from the Minister regarding a potential breach of rights. In regards to clauses 28 and 42 of the Bill, the Committee recommended "that clauses 28 and 42 be amended to ensure that protection is given to citizens' actions in negligence or other common law rights." The subsequent Minister's response was to confirm that "(n)egligent actions would not fall within this protection." Thus, the Minister's response was not to act on the Committee's recommendations, but to simply clarify ambiguity in the Bill.
Use of International Conventions
The Committee's comments on the Sentencing (Amendment) Bill demonstrate its use of international standards in vetting legislation for rights infringements. In one statement it was noted "(t)he Committee is aware of the International Covenant on Civil and Political Rights (ICCPR) and deliberated on what may be understood by the word 'rights'. The Committee will continue to pay regard to statements contained in the ICCPR and in other International covenants." The impact of the ICCPR can be demonstrated by its mention in a Ministerial response to the Committee's concern over indefinite sentencing laws: "I can confirm that no breach of the international covenant (ICCPR) is involved in this Bill."
The Crimes (amendment) Bill (No.2) demonstrates another of the Committee's options: to refer an issue to Parliament for debate. Regarding proposed section 456A, which makes it an offense for a person to refuse to give his or her name upon the request of an officer who believes the person has or is about to commit an offense, the Committee "believes that this new general police power constitutes a reduction in rights [and] draws it to the attention of the parliament as a matter for debate to determine whether the reduction in rightsunduly trespasses upon rights or freedoms." The Bill also raised a question of international standards regarding section 464k which allows for "reasonable force" to be utilized in fingerprinting an unwilling suspect. The Committee noted "that for the purposes of proposed section 464k...children over the age of 15 are to be treated as adults...The International Commission of Jurists submitted that this was a breach of the United Nation Convention of the Rights of the Child." The Attorney General did not reference the UN Convention in her response.
From these three cases, it is clear that the SARC has had an effect upon the quality of legislation produced in Victoria in respect of rights protection. This effect is evidenced in Ministerial responses, Parliamentary debate, and amendments to provisions containing potential infringements. Although the Committee's recommendations are not heeded in all circumstances, the act of clarifying ambiguity, alerting Parliament to sensitive issues, and applying international human rights standards to Victorian legislation has unquestionably improved the quality of human rights protection in Victoria. This position is supported by the Victorian Supreme Court which in May of 1995 wrote: "(i)n particular, the creation of the Scrutiny of Acts and Regulations Committee is to be commended."
Qualitative Analysis: Do Canadians Enjoy More Rights?
The question we arrive at, then, is one of which method results in better protection of rights. This is indeed a difficult question to answer as there exist many different ways to test the quality of legislation. If we define quality in terms of protection of "rights," one might take participation as a key factor in legislation quality.
As has been demonstrated, both the Canadian and Victorian models have resulted in substantial participation by the citizenry. Canadians are actively discussing and utilizing the Charter in advancing minority causes. Charter cases involving indigenous and marriage rights attest to its utility. Likewise, Victorians have been instrumental in presenting testimony to the SARC in its investigative capacity. The Legislative branch of each locale has also accepted the respective changes. Canadian MPs recognize the role the judiciary has to play in rights protection and have become increasingly aware of the effects the Court may have on legislation. Victorian MPs have also recognized the role of the SARC and have become increasingly comfortable with its function. One department official, in regards to the SARC's effectiveness noted "you only get caught once if a minister is embarrassed, then you quickly understand the committees areas of concern."
The role of judicial activism presents an interesting participatory scenario. As has been demonstrated, Canada may be thought of as having invited the judiciary to become more activist. The 1962 Bill of Rights and the 1982 Charter both afforded the Courts in that country increased means to strike down legislation which conflicted with the rights protected by the Charter. Thus, one might have expected, or at least anticipated, an increase in judicial activism in Canada. As a corollary, one would not, then, have expected an increased judicial role in Australia, and specifically Victoria, as the citizens there have expressed an overwhelming interest in maintaining rights protection within the realm of the legislature. Indeed, as noted earlier, 1988 federal referendum, which proposed to extend three existing guarantees of human rights including: religious freedom, just compensation for property acquired by the State, and trial by jury-to the state level, received only 30 percent support and earned it the distinction of suffering the worst defeat in Australian referendum history.
However, despite an Australian prejudice against judicial activism, the judiciary in Australia has become increasingly active. Issues such as implied rights and external affairs powers and their use by the Australian judiciary have received a mixed review. Those who wish to maintain Parliamentary Sovereignty view this recent judicial activism with dismay and warn "[t]he decisions of the judiciary on these matters (rights) cannot be overturned or modified...." Others, on the avant garde of Australian judicial activism, argue the Courts are the last bastion of individual rights protection and insist Parliament can substitute and replace the High Court's interpretations via legislative modification. Regardless of the qualitative issues associated with judicial activism, it is imperative to note that it has proliferated.
That said, there is at this point substantial disagreement over the degree to which judicial activism has increased in Australia. Justice David Harper, of the Victorian Supreme Court, asserts that courts have always stood between the state and the individual with a tradition of not allowing infringementsunless Parliament has explicitly spelled out such infringements. The current issue, then, is a question of which explicit infringements are the Courts permitted to override? Harper notes the signing of international covenants, such as the International Covenant on Civil and Political Rights, has resulted in the Australian citizenry expecting those rights to be afforded them. The Courts may not, in his view, now act contrary to those expectations. Others, such as Justice Michael Kirby, cite recent High Court decisions as having been increasingly sensitive to the protection of basic rights. He notes Mabo v Queensland [No. 2] and Dietrich v The Queen as two cases in which international human rights jurisprudence and implied rights respectively have been utilized by the High Court. In this sense, then, it is difficult to differentiate between Australian and Canadian judicial activism on the basis of statutory provisions alone. Indeed, some view increased judicial activism as an international trend, irrespective of citizen preference for judicial or legislative protection of rights.
A second test relating to which system better protects human rights is to look to the capacity of the legislation in preventing breaches of rights. In addition to preventing rights violations, one might also examine legislation which contains the means to address and correct poorly written legislation which has proven to infringe upon rights. A review of two separate third-party reports, the Amnesty International Report 1994 and the US State Department's Human Rights Practices Report for 1994, provides a means for comparing Australian and Canadian records on human rights violations.
The Amnesty International Report is confined to Australia as it did not produce a report on Canada. The report noted, however, that absence of an entry on a country did not necessarily imply rights violations did not occur in that country. Its report on Australia focused upon the treatment of aboriginal peoples in police custody. Concern was raised over the "conditions in certain detention facilities (which) may amount to cruel, inhuman or degrading treatment and might have contributed to a high rate of deaths in custody among aboriginal prisoners...." Victoria, Queensland, and the Northern Territory were cited as locales in which Amnesty International had sought further inquiry into Aboriginal deaths. In response to domestic pressure rather than international concerns, a Commonwealth/State Royal Commission thoroughly investigated each identified case of aboriginal deaths in custody. On reading the Amnesty Report, it is clear that most of its material was generated either by evidence given to the Royal Commission or publicized in the Australian press. Further concern was raised over Tasmania's Criminal Code Act which provided for the imprisonment of individuals engaging in homosexual acts in private. However, Amnesty=s Report actually followed substantial Australian public debate on the issue. The public debate directly led to the submission of the case to the UN Commission on Human Rights to which Australians are entitled to appeal as Australia is a party to the Optional Protocol to the ICCPR. Federal legislation extending the right of privacy and prohibiting the use of evidence gained in breach of its terms has since neutered the Tasmanian legislation. Thus, although the Amnesty Report does report adversely on Australia without adverse comment on Canada, Australia and its states have moved to resolve each of the matters raised. Interestingly enough, it appears as though such moves have been generated by Australian public opinion rather than Amnesty=s adverse report.
The US State Department's report on Australia also commented on Aboriginal deaths in police custody. It cited a 1991 report of the Royal Commission investigating the deaths of Aboriginals and Torres Strait Islanders that "...indigenous Australians died at approximately the same rate as others in prison, but it stressed that they were arrested at a rate 29 times that of whites." Aboriginal groups also charged arbitrary enforcement of public disrespect (verbal abuse directed at officials) laws. The report also noted that states have taken steps to address these concerns. Racial-sensitivity training for police and advisory bodies to improve police relations with Aboriginal communities attest to these efforts.
The State Department's report on Canada also expressed concern over treatment of indigenous peoples. It noted the British Columbia Treaty Commission facilitated negotiations among aboriginal groups, the Provincial Government, and the Federal Government which are expected to provide aboriginals with considerable benefits: cash compensation for and/or title to lands claimed by them [and] a share in fishing and forestry revenues...." Thus, the mechanisms for correcting rights violations exist in Canada as well as in Australia.
The State Department reported approximate parity between the two countries with regards to their respect for human rights. Concern was raised over the treatment of prisoners, but again, officials in both countries are investigating those areas of concern. Mention was made of Australia's merits test in providing legal counsel to the accused and the High Court was reported as affirming "it would be an exceptional case in which a person accused of serious charges could be tried fairly without a lawyer." With respect to civil liberties, the State Department noted Australia does not have a codified Freedom of Peaceful Assembly provision, as does Canada, but the Australian government does not restrict such assemblies.
Finally, both Countries are also similar with respect to discrimination prevention. Whereas Canada has included such provisions in its Charter, Australia has similar provisions in ordinary statutory law. The results are similar. In both countries, provisions exist for the protection of women and minorities, yet they suffer higher levels of abuse and lower wages. Again both governments are continuing to fund various programs in seeking to remedy these problems.
Although a comprehensive comparative analysis of legislation quality is beyond the scope of this paper, one might conclude from the aforementioned material that the two models have resulted in essentially the same quality of legislation insofar as we are concerned with human rights protection. It is clear that thus far, Canadians have opted for judicial protection of rights while Australians have retained Legislative protection. Perhaps Prime Minister Keating best depicted Australian sentiment on human rights protection in identifying a "public election held every three to four years as the people's best defense against an intrusive government."
Victorians contemplating a bill of rights will understandably be concerned by the increased litigation the Charter brought to Canada. Victorians will also need to decide for themselves whether the politicization of the judiciary is desired. Do Victorians prefer to have essentially political issues decided at least in part by the Courts? Or do they wish to retain that power with the elected legislature? One=s instinct might well be to leave well enough alone. The comparative legislation analysis offered above suggests there is little difference in the scope and degree of rights enjoyed by Australians and Canadians.
On the other hand, Victorians now have the opportunity to take the lead in adopting a bill of rights which may well serve as a model for a federal Bill. Despite the initial challenges faced by Canadians vis-a-vis the Charter, it is evident that the people, courts, and legislature are all adjusting and are now realizing the benefits the Charter offered.
The newly released SARC discussion paper on Section 85 of the Victorian Constitution highlights the interplay between the Supreme Court and the Parliament and raises many difficult rights issues. So too the recent Supreme Court Annual Report raises the same issues. The public debate in this constitutional arena may ultimately propel the Victorian electorate and Parliament into the constitutional entrenchment of rights.
However, the existing evidence demonstrates little or no manifest difference in the practical rights enjoyed by the citizens of Victoria, Australia in general and Canada. It appears that rights protection owes more to the general democratic nature of citizens and their society than black letter law, bills of rights and the precise balance of power between the judiciary and the parliament.
Amnesty International Report 1994.
Barwick, Sir Garfield, extracted here from an editorial of a paper delivered to the Samuel Griffith Society Conference in Sydney on 2-4-95, reprinted in "The Australian" 3-4-95.
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Harper, Hon. David, in an interview on 25-5-95.
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Scrutiny of Acts and Regulations Committee Alert Digest no. 9, 4 Oct. 1994.
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